Kidnapping of a Minor; Interference with Custody; Mens Rea

Com. v. Ortiz, 160 A.3d 230 (Pa. Super. 2017) allocatur granted Sept. 26, 2017, appeal docket 45 WAP 2017


This case presents the question whether a parent who is guilty of the crime of interfering with the custody of his child is also guilty of kidnapping when the sole basis for intent to kidnap is the conduct that supports the interference with custody conviction.    The Superior Court found there was insufficient evidence to support the kidnapping conviction where there was no evidence that he intended to terrorize or harm the child or another person.

Defendant was biological father of the victim, a two-year old girl. The victim’s mother passed away, leaving Defendant with sole physical and legal custody. The victim’s grandmother, Ms. Clark, would frequently babysit the child. After Defendant was placed on electronic monitoring for an unrelated parole matter and drug paraphernalia was observed in his home, Ms. Clark filed a Petition for Family Custody. After Defendant was served with the petition, Defendant informed Ms. Clark that the victim had already been moved to New York. Defendant did not appear at the scheduled custody hearing where the court issued an order granting Ms. Clark interim primary physical and legal custody of the victim.  After failed attempts by Ms. Clark and police to locate Defendant, Allegheny County Child Abduction Response Team was activated with assistance from the FBI, ultimately locating the child in Altoona, Pennsylvania following an extensive investigation.

Based on these events, Defendant was charged with interference with custody of a child (ICC), 18 Pa.C.S. § 2904, and, based solely on the ICC felony offense,  kidnapping of a minor, 18 Pa.C.S. § 2901(a.1)(2), defined in section (a)(2) of the kidnapping statute as unlawfully removing a child from her legal custodian, with the intent to “facilitate commission of any felony or flight thereafter” (“kidnapping”).  Defendant was also charged with concealment of the whereabouts of a child, 18 Pa.C.S. § 2909. A jury found Defendant guilty of ICC and kidnapping, but not guilty of concealment of the whereabouts of a child.  The trial court sentenced Appellant to 6-18 years’ incarceration for the kidnapping offense, and a consecutive term of 2-4 years’ incarceration for ICC. Additionally, due to his kidnapping conviction, Appellant was ordered to comply with SORNA’s lifetime registration requirement.

Defendant appealed to the Superior Court, challenging the sufficiency of the evidence used to support his kidnapping conviction.  Specifically, Defendant argued that the evidence, at most, proved his intent to retain custody of his own child, which, while sufficient to support a conviction for ICC, did not suffice to show his intent to “facilitate commission of any felony or flight thereafter.”  Defendant further argued that he was not charged with and the evidence did not show that he possessed the other specific intents listed in the child kidnapping statute – he did not hold Victim for ransom, cause her injury, or terrorize her.The section of the statute under which Defendant was convicted provides:

(a.1) Kidnapping of a minor.–A person is guilty of kidnapping of a minor if he unlawfully removes a person under 18 years of age a substantial distance under the circumstances from the place where he is found, or if he unlawfully confines a person under 18 years of age for a substantial period in a place of isolation, with any of the following intentions:

(1) To hold for ransom or reward, or as a shield or hostage.

(2) To facilitate commission of any felony or flight thereafter.

(3) To inflict bodily injury on or to terrorize the victim or another.

(4) To interfere with the performance by public officials of any governmental or political function.

Defendant did not dispute the Commonwealth’s evidence as to the non-intent elements of Section (a.1). The Commonwealth conceded that the jury’s verdict was not premised on subsections (1), (3), or (4), and that Defendant was specifically charged under Section (a.1)(2). As a result, the court limited its examination of Defendant’s sufficiency claim to “whether the Commonwealth presented sufficient evidence as to subsection (a.1)(2), that is, whether the Commonwealth proved that Appellant unlawfully removed Victim from her legal custodian, with the intent to ‘facilitate commission of any felony or flight thereafter.’”

The Commonwealth argued that Defendant’s ‘intent’ was to facilitate the commission of a felony, reframing the issue as “whether ICC can be a felony offense that supports a conviction for Kidnapping.”   The trial court ultimately found:

Defendant was given notice of the custody hearing and subsequent [custody] [o]rder and indicated that he did not care. He also stated that the child had been taken out of the Commonwealth to avoid turning her over to her grandmother. He cut off his electronic monitoring ankle bracelet and engaged numerous police departments, the Allegheny County Child Abduction Response Team and the FBI in a multi-state investigation lasting two (2) weeks which eventually led to a SWAT team and hostage response and caused a nearby school to go into lock-down.

Addressing whether the Commonwealth presented sufficient evidence of intent, the Superior Court revisited its prior holdings in Commonwealth v. Barfield, 768 A.2d 343 (Pa. Super. 2001), and Commonwealth v. Rivera, 828 A.2d 1094 (Pa. Super. 2003).

In Barfield, the Superior Court determined that § 2901(a)(4) of the kidnapping statute was not intended to apply where a non-custodial parent removes her children from the custody of a social service agency in violation of a court ordered placement plan, and that ICC is more appropriate for such conduct when the parent did not intend to cause harm to the child.

In Rivera, the Superior Court found non-custodial parental abduction was kidnapping where a parent abducted his child with the intent to terrorize the child’s mother, and the abduction resulted in the death of the child. In that case, the Superior Court rejected the argument that a parent could not be found guilty of kidnapping their own child, finding that the facts of Rivera presented “far more than mere ‘interference’ with custody.”

Defendant argued his case was more analogous to Barfield, where he did not intend to harm his child, but to retain custody of his daughter.

Although the Superior Court found that Defendant had notice of the custody order, the court found Defendant’s case was most analogous to Barfield, reasoning:

In all three cases, the defendants were aware, or should have been aware, that they had acted in defiance of a lawful custody order which effectively prohibited their conduct. The key issue which distinguishes Barfield from Rivera is whether the intent to retain custody or, correspondingly, the intent to maintain the existing bond with the child, was the sole basis for the abduction. In Rivera, sufficient evidence was presented to demonstrate that Rivera had abducted his own child, not for the benefit of maintaining the status quo of their relationship, but in order to terrorize another individual.

In Barfield, by contrast, despite the failure of authorities to locate the missing children, there was still not sufficient evidence to show that Barfield had acted with intent beyond a desire to protect or maintain custody of the children. Moreover, in Barfield, the relevant intent provision of the kidnapping statute was whether Barfield had acted with the intent to “interfere with the performance by public officials of any governmental or political function.” Barfield, 768 A.2d at 345 (quoting 18 Pa.C.S. § 2901(a)(4)). Viewed from a perspective ignorant of the existence of the ICC statute, it would appear that Barfield’s conduct did, in fact, interfere with the duties of the caseworkers managing her children’s custody matter, with the police who tried to secure their return, and/or with the judge who had issued the custody order in the first place. Nevertheless, the Barfield Court concluded that, when considered in relation the crime of ICC, such interpretations would effectively undermine the legislature’s effort in crafting the ICC statute.

The court went on to distinguish Riviera from Barfield and Defendant’s case, noting that Riviera involved a child abduction, whereas Barfield and Defendant refused to turn over physical custody in accordance with a court order. Finding no reason to depart from the reasoning in Barfield, the court rejected the Commonwealth’s invitation to construe the intent requirement in Defendant’s case under Section (a.1)(2) differently from Section (a.1)(4) as interpreted in Barfield.

The Superior Court concluded that “the most obvious and best way to maximize the effect of both [the ICC and Kidnapping] statutes is to exclude ICC “as a ‘felony’ which can satisfy that intent element, but only in the narrow and specific circumstance where a defendant is the biological parent of the child addressed by the custody order in question.”

The court held that the evidence was insufficient to establish Defendant’s intent pursuant to Section 2901(a.1)(2), and reversed Defendant’s conviction for kidnapping as well as the corresponding SORNA order, vacated Defendant’s sentence for ICC, and remanded to the trial court for resentencing.

The Supreme Court granted allocatur to determine the following issue presented by the Commonwealth:

Whether interference with custody of children, 18 Pa.C.S. § 2904, can be the felony offense that supports a conviction of kidnapping of a minor, 18 Pa.C.S. § 2901(a.1)(2)?

For more information, contact Kevin McKeon or Dennis Whitaker